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Sunday, August 16, 2009
Alan Milstein on Clarett v. NFL and Prospect of Similar Challenge to NBA Eligibility Restriction

Alan Milstein, who litigated on behalf of Maurice Clarett in Clarett v. NFL (I was also part of Clarett's legal team), was interviewed over on Hoop Teens about the prospect of a player challenging the NBA's eligibility rule, which requires that U.S. players be at least 19-years-old by December 31 of the year of the draft and that they be one year removed from high school (In contrast, international players, defined as those who maintain a permanent residence outside of the United States for at least three years preceding the draft, need only be 19-years-old by December 31 of the year of the draft.).

Here are some excerpts from Alan's interview:

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“He was precluded from playing at Ohio State because of supposed NCAA violations,” says Alan Milstein, Clarett’s lawyer in the case. “He had no other place to go. He was ready to play football. They were ready to hire him. And he just needed to get into the draft.”

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“The 2nd circuit was wrong in the way that they ruled on the case,” says Milstein with conviction. “We won at the district court level, lost at the 2nd circuit. We shouldn’t have lost, we should have won.”

Milstein disagrees with skeptics that say football is a different beast than the other pro sports. Surely the physicality of the sport gives the NFL legitimacy in requiring players to be at least three years removed from high school. Right?

“The best hockey player in the world [Sidney Crosby] came out of high school,” says Milstein. “I think the NFL is a kid’s game compared to the NHL as far as the level of violence. If the players are ready to play, they will get drafted. If they’re not ready to play, they won’t make the team.”

Milstein is a staunch proponent of no age limits in professional sports and thinks the policies that professional leagues set run deeper than just meeting their own interests. “I think it’s an outrageous policy [setting age limits], perpetuated by an agreement by the … pro teams to help the NCAA,” says Milstein.

Asked if he would have any interest in challenging the NBA’s policy if he was approached by a client, Milstein replies, “Absolutely.” Spencer Haywood did challenge the NBA — and won — but that was back in 1971. Since the NBA’s new age policy took effect with the 2006 draft, nobody has bothered to contest it in court. Just last year, Brandon Jennings chose to play in Italy for one season instead of trying his luck in the judicial system.

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I discuss the prospect of a legal challenge to the NBA's eligibility restriction in my forthcoming law review article Judge Sonia Sotomayor and the Relationship Between Leagues and Players, which Henry Abbot recently discussed on and Darren Heitner discussed on Sports Agent Blog. Yes, the article title will soon change to "Justice Sonia Sotomayor . . ."


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